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Services provided by a public authority - taking legal action about discrimination
The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful.
If you’ve experienced unlawful discrimination by a public authority like the police or local authority, you may be able to take legal action under the Equality Act.
Read this page to find out more about taking legal action against a public authority.
Before you take action
Taking court action can be a long and stressful process. It can also be expensive. It’s important to keep in mind that if you lose the case in court, you may have to pay the legal costs of the public authority which could be high.
If you’re thinking about taking court action, you should get advice from an experienced adviser - for example, at a Citizens Advice Bureau - where to get advice.
Check whether discrimination has happened
If you want to take legal action about unlawful discrimination, you need to be reasonably sure that discrimination has taken place, according to the Equality Act. But if the treatment doesn’t count as unlawful discrimination under the law, you may still have been treated badly or unfairly and you may be able to do something about it. For example, you may still be able to make a complaint.
Can you get legal aid?
You may be able to get legal aid to help you pay for your court action. To get legal aid you need to meet the eligibility criteria. You can contact the Equality Advisory Support Service (EASS) who can help you find out if you can get legal aid.
You can also check if you’re eligible on the Scottish Legal Aid Board website at www.slab.org.uk.
What court action can you take if you've been discriminated against?
If you've been discriminated against by a public authority and you want to take legal action you may be able to:
- make a discrimination claim
- make an application for judicial review.
Making a discrimination claim under the Equality Act
Where do you make a discrimination claim?
You can make a discrimination claim in the sheriff court.
What are the time limits for making your claim?
You need to make your discrimination claim within six months of the act you’re complaining about. It’s important to keep this in mind if you want to try and resolve your problem informally first. The court can allow a claim outside the time limits, but only if it considers it just and equitable to do so.
When do the limits run from?
If you’re complaining about behaviour over a period of time, the six months begin at the end of the period.
If you’re complaining about a failure to do something - for example, if a public authority has failed to make reasonable adjustments, the time limit starts to run when the decision was made not to do it.
What do you need to show the court?
To show unlawful discrimination, the Equality Act says you need to prove enough facts from which the court can decide, without any other explanation, that discrimination has taken place.
If you can show the court facts from which it can conclude that unlawful discrimination has happened, it’s then up to the public authority to show it's not unlawful discrimination.
What can the court do?
The court can make a declaration that the discrimination happened. They can order the public authority to give you compensation. They can also make an order telling the public authority to do or not to do something. This is called an interdict.
How do you obtain information to help support your claim?
It’s a good idea to keep all emails, letters or other documentary evidence if you have this to support your claim. In addition there are ways of getting more information for when you go to court.
You can use the questionnaire procedure to ask for information about your treatment from the public authority who's discriminated against you. You may also be able to make a Freedom of Information request.
Making an application for judicial review
In some situations if you've been discriminated against by a public authority, you may be able to make an application for judicial review.
What’s judicial review?
Judicial review is a special procedure you can use to challenge certain decisions by public authorities. Judicial review applications must be made in the Court of Session. There are no set time limits for making the application but it should be made as soon as possible.
Who can make a judicial review application?
You can only make a judicial review application if you have sufficient interest in the decision you want to complain about. This generally means you need to be personally affected by the decision.
You can only use judicial review if there are no other ways of challenging a decision - for example, if you don't have a separate right of appeal. If you want to make an application for judicial review you should get advice from an experienced adviser - for example at a Citizens Advice Bureau.
Using human rights law or the public sector equality duty
Most public authorities like the police, local authorities and government departments must comply with human rights law and the public sector equality duty. If you want to take action about discrimination you may be able to use human rights and the public sector equality duty to strengthen your claim.
Other useful information
Equality Advisory Support Service (EASS)
If you have experienced discrimination, you can get help from the EASS discrimination helpline.
Equality and Human Rights Commission (EHRC)
You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com.